6 U.S.C. § 236 — Visa issuance

Page 125 TITLE 6—DOMESTIC SECURITY § 236 1 So in original. Probably should be ‘‘section’’. 2 So in original. Probably should be ‘‘ ‘consular officer’ ’’. (c) Limitations on statutory construction (1) Grant of authority Nothing in this chapter may be construed to vest in the Secretary or any other official in the Department any authority over transpor- tation security that is not vested in the Under Secretary of Transportation for Security, or in the Secretary of Transportation under chapter 449 of title 49 on the day before No- vember 25, 2002. (2) Obligation of AIP funds Nothing in this chapter may be construed to authorize the Secretary or any other official in the Department to obligate amounts made available under section 48103 of title 49. (Pub. L. 107–296, title IV, § 423, Nov. 25, 2002, 116 Stat. 2185.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (c), was in the original ‘‘this Act’’, meaning Pub. L. 107–296, Nov. 25, 2002, 116 Stat. 2135, known as the Homeland Security Act of 2002, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 101 of this title and Tables. Statutory Notes and Related Subsidiaries CHANGE OF NAME Reference to Under Secretary of Transportation for Security deemed to refer to Administrator of the Transportation Security Administration, see section 1994 of Pub. L. 115–254, set out as a note under section 114 of Title 49, Transportation. § 234. Preservation of Transportation Security Administration as a distinct entity Notwithstanding any other provision of this chapter, the Transportation Security Adminis- tration shall be maintained as a distinct entity within the Department. (Pub. L. 107–296, title IV, § 424, as added Pub. L. 114–125, title VIII, § 802(g)(1)(B)(iv)(I), Feb. 24, 2016, 130 Stat. 212.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 107–296, Nov. 25, 2002, 116 Stat. 2135, known as the Homeland Security Act of 2002, which is classified principally to this chapter. For com- plete classification of this Act to the Code, see Short Title note set out under section 101 of this title and Ta- bles. PRIOR PROVISIONS A prior section 234, Pub. L. 107–296, title IV, § 424, Nov. 25, 2002, 116 Stat. 2185, provided for the preservation of the Transportation Security Administration as a dis- tinct entity applicable until 2 years after Nov. 25, 2002, prior to repeal by Pub. L. 114–125, title VIII, § 802(g)(1)(B)(iv)(I), Feb. 24, 2016, 130 Stat. 212. § 235. Coordination of information and informa- tion technology (a) Definition of affected agency In this section, the term ‘‘affected agency’’ means— (1) the Department; (2) the Department of Agriculture; (3) the Department of Health and Human Services; and (4) any other department or agency deter- mined to be appropriate by the Secretary. (b) Coordination The Secretary, in coordination with the Sec- retary of Agriculture, the Secretary of Health and Human Services, and the head of each other department or agency determined to be appro- priate by the Secretary, shall ensure that appro- priate information (as determined by the Sec- retary) concerning inspections of articles that are imported or entered into the United States, and are inspected or regulated by 1 or more af- fected agencies, is timely and efficiently ex- changed between the affected agencies. (c) Report and plan Not later than 18 months after November 25, 2002, the Secretary, in consultation with the Secretary of Agriculture, the Secretary of Health and Human Services, and the head of each other department or agency determined to be appropriate by the Secretary, shall submit to Congress— (1) a report on the progress made in imple- menting this section; and (2) a plan to complete implementation of this section. (Pub. L. 107–296, title IV, § 427, Nov. 25, 2002, 116 Stat. 2187.) § 236. Visa issuance (a) Definition In this subsection,1 the term ‘‘consular of- fice’’ 2 has the meaning given that term under section 101(a)(9) of the Immigration and Nation- ality Act (8 U.S.C. 1101(a)(9)). (b) In general Notwithstanding section 104(a) of the Immi- gration and Nationality Act (8 U.S.C. 1104(a)) or any other provision of law, and except as pro- vided in subsection (c) of this section, the Sec- retary— (1) shall be vested exclusively with all au- thorities to issue regulations with respect to, administer, and enforce the provisions of such Act [8 U.S.C. 1101 et seq.], and of all other im- migration and nationality laws, relating to the functions of consular officers of the United States in connection with the granting or re- fusal of visas, and shall have the authority to refuse visas in accordance with law and to de- velop programs of homeland security training for consular officers (in addition to consular training provided by the Secretary of State), which authorities shall be exercised through the Secretary of State, except that the Sec- retary shall not have authority to alter or re- verse the decision of a consular officer to refuse a visa to an alien; and (2) shall have authority to confer or impose upon any officer or employee of the United States, with the consent of the head of the ex- Page 126 TITLE 6—DOMESTIC SECURITY § 236 3 See References in Text note below. ecutive agency under whose jurisdiction such officer or employee is serving, any of the func- tions specified in paragraph (1). (c) Authority of the Secretary of State (1) In general Notwithstanding subsection (b), the Sec- retary of State may direct a consular officer to refuse a visa to an alien if the Secretary of State deems such refusal necessary or advis- able in the foreign policy or security interests of the United States. (2) Construction regarding authority Nothing in this section, consistent with the Secretary of Homeland Security’s authority to refuse visas in accordance with law, shall be construed as affecting the authorities of the Secretary of State under the following provi- sions of law: (A) Section 101(a)(15)(A) of the Immigra- tion and Nationality Act (8 U.S.C. 1101(a)(15)(A)). (B) Section 204(d)(2) of the Immigration and Nationality Act (8 U.S.C. 1154) (as it will take effect upon the entry into force of the Convention on Protection of Children and Cooperation in Respect to Inter-Country adoption). (C) Section 212(a)(3)(B)(i)(IV)(bb) of the Im- migration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(IV)(bb)). (D) Section 212(a)(3)(B)(i)(VI) of the Immi- gration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(VI)). (E) Section 212(a)(3)(B)(vi)(II) of the Immi- gration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)). (F) Section 212(a)(3)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(C)). (G) Section 212(a)(10)(C) of the Immigra- tion and Nationality Act (8 U.S.C. 1182(a)(10)(C)). (H) Section 212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)). (I) Section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)). (J) Section 237(a)(4)(C) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(C)). (K) Section 401 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 [22 U.S.C. 6091]. (L) Section 613 of the Departments of Com- merce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1999 3 (as contained in section 101(b) of division A of Public Law 105–277) (Omnibus Consoli- dated and Emergency Supplemental Appro- priations Act, 1999); 112 Stat. 2681; H.R. 4328 (originally H.R. 4276) as amended by section 617 of Public Law 106–553. (M) Section 103(f) of the Chemical Weapon Convention Implementation Act of 1998 [22 U.S.C. 6713(f)] (112 Stat. 2681–865). (N) Section 801 of H.R. 3427, the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 [8 U.S.C. 1182e], as enacted by reference in Public Law 106–113. (O) Section 568 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002 (Public Law 107–115). (P) Section 51 of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2723). (d) Consular officers and chiefs of missions (1) In general Nothing in this section may be construed to alter or affect— (A) the employment status of consular of- ficers as employees of the Department of State; or (B) the authority of a chief of mission under section 207 of the Foreign Service Act of 1980 (22 U.S.C. 3927). (2) Construction regarding delegation of au- thority Nothing in this section shall be construed to affect any delegation of authority to the Sec- retary of State by the President pursuant to any proclamation issued under section 212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)), consistent with the Secretary of Homeland Security’s authority to refuse visas in accordance with law. (e) Assignment of Homeland Security employees to diplomatic and consular posts (1) In general The Secretary is authorized to assign em- ployees of the Department to each diplomatic and consular post at which visas are issued, unless the Secretary determines that such an assignment at a particular post would not pro- mote homeland security. (2) Functions Employees assigned under paragraph (1) shall perform the following functions: (A) Provide expert advice and training to consular officers regarding specific security threats relating to the adjudication of indi- vidual visa applications or classes of applica- tions. (B) Review any such applications, either on the initiative of the employee of the De- partment or upon request by a consular offi- cer or other person charged with adjudi- cating such applications. (C) Conduct investigations with respect to consular matters under the jurisdiction of the Secretary. (3) Evaluation of consular officers The Secretary of State shall evaluate, in consultation with the Secretary, as deemed appropriate by the Secretary, the performance of consular officers with respect to the proc- essing and adjudication of applications for visas in accordance with performance stand- ards developed by the Secretary for these pro- cedures. (4) Report The Secretary shall, on an annual basis, sub- mit a report to Congress that describes the basis for each determination under paragraph (1) that the assignment of an employee of the Department at a particular diplomatic post would not promote homeland security. Page 127 TITLE 6—DOMESTIC SECURITY § 236 4 So in original. Probably should be ‘‘Governmental’’. (5) Permanent assignment; participation in ter- rorist lookout committee When appropriate, employees of the Depart- ment assigned to perform functions described in paragraph (2) may be assigned permanently to overseas diplomatic or consular posts with country-specific or regional responsibility. If the Secretary so directs, any such employee, when present at an overseas post, shall par- ticipate in the terrorist lookout committee es- tablished under section 304 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1733). (6) Training and hiring (A) In general The Secretary shall ensure, to the extent possible, that any employees of the Depart- ment assigned to perform functions under paragraph (2) and, as appropriate, consular officers, shall be provided the necessary training to enable them to carry out such functions, including training in foreign lan- guages, interview techniques, and fraud de- tection techniques, in conditions in the par- ticular country where each employee is as- signed, and in other appropriate areas of study. (B) Use of Center The Secretary is authorized to use the Na- tional Foreign Affairs Training Center, on a reimbursable basis, to obtain the training described in subparagraph (A). (7) Report Not later than 1 year after November 25, 2002, the Secretary and the Secretary of State shall submit to Congress— (A) a report on the implementation of this subsection; and (B) any legislative proposals necessary to further the objectives of this subsection. (8) Effective date This subsection shall take effect on the ear- lier of— (A) the date on which the President pub- lishes notice in the Federal Register that the President has submitted a report to Con- gress setting forth a memorandum of under- standing between the Secretary and the Sec- retary of State governing the implementa- tion of this section; or (B) the date occurring 1 year after Novem- ber 25, 2002. (f) No creation of private right of action Nothing in this section shall be construed to create or authorize a private right of action to challenge a decision of a consular officer or other United States official or employee to grant or deny a visa. (g) Study regarding use of foreign nationals (1) In general The Secretary of Homeland Security shall conduct a study of the role of foreign nation- als in the granting or refusal of visas and other documents authorizing entry of aliens into the United States. The study shall ad- dress the following: (A) The proper role, if any, of foreign na- tionals in the process of rendering decisions on such grants and refusals. (B) Any security concerns involving the employment of foreign nationals. (C) Whether there are cost-effective alter- natives to the use of foreign nationals. (2) Report Not later than 1 year after November 25, 2002, the Secretary shall submit a report con- taining the findings of the study conducted under paragraph (1) to the Committee on the Judiciary, the Committee on International Relations, and the Committee on Government Reform of the House of Representatives, and the Committee on the Judiciary, the Com- mittee on Foreign Relations, and the Com- mittee on Government 4 Affairs of the Senate. (h) Report Not later than 120 days after November 25, 2002, the Director of the Office of Science and Technology Policy shall submit to Congress a report on how the provisions of this section will affect procedures for the issuance of student visas. (i) Visa issuance program for Saudi Arabia Notwithstanding any other provision of law, after November 25, 2002, all third party screening programs in Saudi Arabia shall be terminated. On-site personnel of the Department of Home- land Security shall review all visa applications prior to adjudication. (Pub. L. 107–296, title IV, § 428, Nov. 25, 2002, 116 Stat. 2187.) Editorial Notes REFERENCES IN TEXT The Immigration and Nationality Act, referred to in subsec. (b)(1), is act June 27, 1952, ch. 477, 66 Stat. 163, which is classified principally to chapter 12 (§ 1101 et seq.) of Title 8, Aliens and Nationality. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of Title 8 and Tables. Section 613 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appro- priations Act, 1999, referred to in subsec. (c)(2)(L), prob- ably means section 101(b) [title VI, § 616] of Pub. L. 105–277, div. A, Oct. 21, 1998, 112 Stat. 2681–50, 2681–114, which prohibits use of funds for issuance of visas to persons alleged to have ordered, carried out, or materi- ally assisted in extrajudicial and political killings in Haiti and to certain others and is not classified to the Code. Section 103(f) of the Chemical Weapon Convention Implementation Act of 1998, referred to in subsec. (c)(2)(M), probably means section 103(f) of the Chemical Weapons Convention Implementation Act of 1998, which is classified to section 6713(f) of Title 22, Foreign Rela- tions and Intercourse. Section 568 of the Foreign Operations, Export Financ- ing, and Related Programs Appropriations Act, 2002, re- ferred to in subsec. (c)(2)(O), is section 568 of title V of Pub. L. 107–115, Jan. 10, 2002, 115 Stat. 2166, which is not classified to the Code. Statutory Notes and Related Subsidiaries CHANGE OF NAME References to National Foreign Affairs Training Cen- ter considered to refer to George P. Shultz National Page 128 TITLE 6—DOMESTIC SECURITY § 237 Foreign Affairs Training Center, see section 1(b) of Pub. L. 107–132, set out as a note under section 4021 of Title 22, Foreign Relations and Intercourse. Committee on International Relations of House of Representatives changed to Committee on Foreign Af- fairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Government Reform of House of Rep- resentatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Com- mittee on Oversight and Reform of House of Represent- atives by House Resolution No. 6, One Hundred Six- teenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hun- dred Eighteenth Congress, Jan. 9, 2023. Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Gov- ernmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Con- gress, Oct. 9, 2004. § 237. Information on visa denials required to be entered into electronic data system (a) In general Whenever a consular officer of the United States denies a visa to an applicant, the con- sular officer shall enter the fact and the basis of the denial and the name of the applicant into the interoperable electronic data system imple- mented under section 1722(a) of title 8. (b) Prohibition In the case of any alien with respect to whom a visa has been denied under subsection (a)— (1) no subsequent visa may be issued to the alien unless the consular officer considering the alien’s visa application has reviewed the information concerning the alien placed in the interoperable electronic data system, has indi- cated on the alien’s application that the infor- mation has been reviewed, and has stated for the record why the visa is being issued or a waiver of visa ineligibility recommended in spite of that information; and (2) the alien may not be admitted to the United States without a visa issued in accord- ance with the procedures described in para- graph (1). (Pub. L. 107–296, title IV, § 429, Nov. 25, 2002, 116 Stat. 2191.) § 238. Office for Domestic Preparedness (a) Establishment There is established in the Department an Of- fice for Domestic Preparedness. (b) Director There shall be a Director of the Office for Do- mestic Preparedness, who shall be appointed by the President. (c) Responsibilities The Office for Domestic Preparedness shall have the primary responsibility within the exec- utive branch of Government for the prepared- ness of the United States for acts of terrorism, including— (1) coordinating preparedness efforts at the Federal level, and working with all State, local, tribal, parish, and private sector emer- gency response providers on all matters per- taining to combating terrorism, including training, exercises, and equipment support; (2) coordinating or, as appropriate, consoli- dating communications and systems of com- munications relating to homeland security at all levels of government; (3) directing and supervising terrorism pre- paredness grant programs of the Federal Gov- ernment (other than those programs adminis- tered by the Department of Health and Human Services) for all emergency response providers; (4) incorporating the Strategy priorities into planning guidance on an agency level for the preparedness efforts of the Office for Domestic Preparedness; (5) providing agency-specific training for agents and analysts within the Department, other agencies, and State and local agencies and international entities; (6) as the lead executive branch agency for preparedness of the United States for acts of terrorism, cooperating closely with the Fed- eral Emergency Management Agency, which shall have the primary responsibility within the executive branch to prepare for and miti- gate the effects of nonterrorist-related disas- ters in the United States; (7) assisting and supporting the Secretary, in coordination with other Directorates and enti- ties outside the Department, in conducting ap- propriate risk analysis and risk management activities of State, local, and tribal govern- ments consistent with the mission and func- tions of the Department; (8) those elements of the Office of National Preparedness of the Federal Emergency Man- agement Agency which relate to terrorism, which shall be consolidated within the Depart- ment in the Office for Domestic Preparedness established under this section; and (9) helping to ensure the acquisition of inter- operable communication technology by State and local governments and emergency re- sponse providers. (d) Fiscal years 2003 and 2004 During fiscal year 2003 and fiscal year 2004, the Director of the Office for Domestic Preparedness established under this section shall manage and carry out those functions of the Office for Do- mestic Preparedness of the Department of Jus- tice (transferred under this section) before Sep- tember 11, 2001, under the same terms, condi- tions, policies, and authorities, and with the re- quired level of personnel, assets, and budget be- fore September 11, 2001. (Pub. L. 107–296, title IV, § 430, Nov. 25, 2002, 116 Stat. 2191; Pub. L. 108–458, title VII, § 7303(h)(2), Dec. 17, 2004, 118 Stat. 3847; Pub. L. 112–166, § 2(f)(1), Aug. 10, 2012, 126 Stat. 1284; Pub. L. 114–125, title VIII, § 802(g)(1)(B)(iv)(II), Feb. 24, 2016, 130 Stat. 212.) Editorial Notes AMENDMENTS 2016—Subsec. (a). Pub. L. 114–125, § 802(g)(1)(B)(iv)(II)(aa), amended subsec. (a) generally. Prior to amendment, text read as follows: ‘‘The Office